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Court of Appeals affirms biased eyewitness testimony insufficient to prove adultery

The July 24, 2010 Court of Appeals opinion in Kennedy v. Kennedy, 389 S.C. 494, 699 S.E.2d 184 (Ct. App. 2010) provides some guidance on proof of adultery, alimony, and apportionment of marital debt.

The family court refused to find that Wife committed adultery and the Court of Appeals affirmed.  Husband’s evidence of adultery was solely based on three witnesses’ testimony.  Two of the witnesses simply testified that Wife had admitted the adultery.  The other witness was Husband’s son from a prior marriage, Kevin Jr., who claimed he actually observed Wife with her alleged paramour.  In contrast, Wife denied having any interaction with the alleged paramour and the parties’ son, Luke, refuted Kevin Jr.’s account, testifying that he was actually present on the day that Kevin Jr. claims to have observed Wife with her alleged paramour and that Kevin Jr. wasn’t even there.  Given this conflicting evidence, the decision regarding adultery was purely a credibility determination which the family court found in Wife’s favor.  The Court of Appeals affirmed, noting:

[W]e believe the family court was in the best position to judge the witnesses’ credibility and veracity on the issue of adultery, and thus, we find the family court did not abuse its discretion in denying Husband’s request for a divorce on the grounds of adultery.

The Court of Appeals further affirmed an award of $300 per month in permanent periodic alimony to Wife despite Husband being disabled.   The family court included a provision for modifying Husband’s alimony obligation if Wife establishes her entitlement to social security benefits in her pending claim before the Social Security Administration.

This was a 16 ½ marriage at the time of filing, with the separation precipitated by Husband being arrested for criminal domestic violence for threatening to kill Wife.  Wife was mentally unstable, and her sole source of income was $155 a month in food stamps.  Husband was disabled with monthly income of $2,023 from long-term disability and social security.  Given these factors, the Court of Appeals affirmed the alimony award.

The Court of Appeals also affirmed the family court’s determination that Wife met her burden of rebutting the presumption that almost $16,000 in credit card debt incurred while Husband was incarcerated was non marital and that she should not be required to contribute towards these debts.  It based this finding on evidence that Kevin Jr. was actually responsible for the majority of charges on these credit cards during this time period.  Finally, the Court of Appeals refused to address Husband’s appeal of the award of attorney’s fees to Wife, as Husband’s appeal on this issue was predicated on alleged error in the alimony and equitable distribution awards.

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  • The Kennedy opinion seems innocuous, simply a question of which testimony the trial judge believed. I am curious about the burden of proof. Does adultery as a defense to alimony require the same “clear and convincing” standard as a divorce on the ground of adultery or is “a mere preponderance of the evidence” sufficient as a defense. The court here seems to say the standard is the same.

    Seems strange to require the wife to prove her claim for adultery by a preponderance of the evidence while requiring the husband to prove his defense by clear and convincing evidence.

    How do you feel about the language “In its order, the family court implicitly found the credit card debts were nonmarital….” I believe that all findings of an order, particularly regarding major operative facts, should be explicit findings.

    I would have found that “husband’s food, liquor, and hotel room” here marital debts; however, if they were post-incarceration, then they were probably post-filing as well, which would make them nonmarital.

    Throughout this opinion, the court refers to the trial judge’s better ability to evaluate and judge the credibility of the witnesses. About a year ago, the Supreme Court struck about one sentence from a court of appeals opinion in which Chief Judge Hearn said that sometimes the appellate court is in a better position than the trial judge to view the entire record in a cool and reflective manner. She did not use those words but that was the gist of it. I absolutely agree with now Justice Hearn because I think the trial court is more likely to make an emotional findings of fact than is an appellate court.

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